Decision Date: 11/29/95 Archive Date:
11/28/95
DOCKET NO. 90-53 139 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUES
1. Entitlement to service connection for acne vulgaris.
2. Entitlement to service connection for sebaceous cyst,
multiple papillomas and nevus.
3. Entitlement to an increased disability evaluation for a
psychogenic gastrointestinal reaction with chronic irritable
bowel syndrome, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and wife
ATTORNEY FOR THE BOARD
Anna Bryant, Counsel
INTRODUCTION
The veteran had active military service from September 1945
to November 20, 1946.
This matter originally came before the Board of Veterans'
Appeals (Board) on appeal from an April 1990 rating decision
of the Phoenix, Arizona Regional Office (RO) of the
Department of Veterans' Affairs (VA), which denied the
veteran's claim seeking entitlement to service connection
for several skin disorders, and continued the prior
noncompensable evaluation for a psychogenic gastrointestinal
reaction. The notice of disagreement regarding the issue of
service connection for the skin disorders was received later
in April 1990. A statement of the case was issued in May
1990. A notice of disagreement in reference to the denial
of an increased (compensable) evaluation for the veteran's
service-connected psychogenic gastrointestinal reaction was
received in July 1990. A supplemental statement of the case
was issued in August 1990. The veteran's substantive appeal
was received later that same month. In October 1990, the
veteran, accompanied by his accredited representative,
appeared and presented testimony at a hearing on appeal
before a VA hearing officer. The hearing officer's
decision, issued in October 1990, is of record. In a
November 1990 rating decision, the RO confirmed and
continued the prior denial of service connection for the
veteran's skin disorders. The case was thereafter received
at the Board.
In June 1991, the Board remanded the case to the RO in order
to procure clarifying medical data and ensure full due
process of law. Pursuant thereto, a supplemental statement
of the case was issued in November 1991. The case was
thereafter transferred to the Board. In June 1992, the
Board again remanded the case to the RO for additional
evidentiary development and due process considerations.
Following completion of some of the requested development,
the RO granted service connection for chronic irritable
bowel syndrome in an April 1993 rating decision. The RO
also assigned a 10 percent evaluation for the veteran's
service-connected psychogenic gastrointestinal reaction and
chronic irritable bowel syndrome under Diagnostic Code 9502-
7319. A supplemental statement of the case was issued in
May 1993. The case was again received at the Board in April
1995.
The Board observes that the record does not contain any
documentation of the notice, if any, which was sent to the
veteran regarding the April 1993 rating decision or
concerning his right to appeal the denial of service
connection on a secondary basis for sebaceous cyst, multiple
papillomas and nevus. Accordingly, this matter is referred
to the RO in order that the veteran may be provided with
notification of the denial and of his appellate rights.
Additionally, pursuant to 38 C.F.R. § 3.151 (1994), a claim
by a veteran for compensation may be considered to be a
claim for pension. Inasmuch as the issue of a claim for
pension benefits has not been addressed, the matter is
referred to the RO for appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his representative contend that service
connection is warranted for acne vulgaris, sebaceous cyst,
multiple papillomas and nevus. Essentially, it is
maintained that symptomatology attributable to the veteran's
skin disorders first became manifest in service. Therefore,
service connection should be granted either based upon
inservice incurrence or aggravation of the acne vulgaris.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the evidence supports a claim of
service connection by aggravation for acne vulgaris.
Further, it is the decision of the Board that the veteran
has not met the burden of presenting a well-grounded claim
for service connection for sebaceous cyst, multiple
papillomas and nevus, and, accordingly, the claim is
dismissed.
FINDINGS OF FACT
1. Mild, generalized acne vulgaris was noted on the
veteran's September 1945 entrance examination report.
2. Service medical records show that the veteran was
treated on several different occasions for acne of the face.
3. The veteran's acne vulgaris existed prior to service and
there was sustained increase in basic pathology during
service.
4. The veteran currently has mild to moderate acne scarring
on the cheeks, nose, chin and chest.
5. The veteran has not submitted evidence sufficient to
justify a belief by a fair and impartial individual that his
claim for service connection for sebaceous cyst, multiple
papillomas and nevus on a direct basis is plausible.
CONCLUSIONS OF LAW
1. The veteran's pre-existing acne vulgaris was aggravated
by service. 38 U.S.C.A. §§ 1110, 1153, 5107 (West 1991); 38
C.F.R. § 3.306 (1994).
2. The veteran has not submitted a well-grounded claim for
service connection for sebaceous cyst, multiple papillomas
and nevus on a direct basis. 38 U.S.C.A. §§ 1110, 5107
(West 1991); 38 C.F.R. § 3.303 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Service connection for acne vulgaris
We note that we have found that the veteran's claim seeking
service connection for acne vulgaris is "well-grounded"
within the meaning of 38 U.S.C.A. § 5107(a). That is, we
find that he has presented a claim which is plausible. We
are also satisfied that all relevant facts have been
properly developed. The record is devoid of any indication
that there are other records available which may pertain to
the issue on appeal. No further assistance to the veteran
is required to comply with the duty to assist him, as
mandated by 38 U.S.C.A. § 5107(a).
The veteran primarily asserts that entitlement to service
connection for acne vulgaris is warranted as the skin
disorder is related to service. Under the applicable
criteria, in order to establish service connection for the
claimed disability, the facts, as shown by the evidence,
must demonstrate that a particular disease or injury
resulted in current disability which was incurred during
service or, if preexisting service, was aggravated thereby.
38 U.S.C.A. § 1110. A preexisting injury or disease will be
considered to have been aggravated by active service, where
there is an increase in disability during such service,
unless there is a specific finding that the increase in
disability is due to the natural progress of the disease.
38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).
Clear and unmistakable evidence (obvious or manifest) is
required to rebut the presumption of aggravation where the
preservice disability underwent an increase in severity
during wartime service. This includes medical facts and
principles which may be considered to determine whether the
increase is due to the natural progress of the condition.
Aggravation may not be conceded where the disability
underwent no increase in severity during service on the
basis of all the evidence of record pertaining to the
manifestations of the disability prior to, during and
subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. §
3.306(b).
Review of the service medical records reflects that on
entrance examination in September 1945, clinical evaluation
of the veteran's skin revealed mild, generalized acne
vulgaris. Thereafter, in December 1945 and on several
different occasions in 1946, he was seen for acne of the
face. On examination in March 1946, clinical evaluation of
the skin revealed was negative for acne. Further review of
the service medical records indicates that the veteran in
October 1946 underwent an allergy examination. On that
occasion, the veteran stated that he had had a rash on his
face for the past 10-12 years. Clinical examination of the
skin revealed deep seated papulo-pustular eruption on the
face and neck. Old scars were noted from previous lesions.
The diagnosis was severe acne of the face and neck. A
Certificate Of Disability For Discharge, dated November 20,
1946, is negative for acne vulgaris.
Postservice clinical evidence shows that the veteran was
initially examined by the VA in September 1948. At that
time, clinical evaluation of the skin showed chronic acne
vulgaris of the face and trunk.
The veteran's original claim for service connection for skin
disorders was received in October 1989. On the occasion of
a hearing on appeal in October 1990, the veteran testified
that he received inservice treatment for chronic acne of the
face and upper neck. He stated that his acne vulgaris
increased in severity during service and that he had had
symptoms related thereto since service separation. The
veteran further noted that he had be receiving outpatient
treatment for his acne vulgaris since his discharge from
service. The veteran's spouse testified that the veteran
did have acne vulgaris of the face and back prior to
service. Essentially, she stated the chronic skin disorder
was incurred during his military service. In this regard,
the Board's attention has been directed to photographs taken
before the veteran's initial enlistment in September 1945.
Pursuant to the June 1992 Board's remand, the veteran was
afforded a VA dermatological examinations in January and
April 1993. On examination of the skin in January 1993, it
was recorded for clinical purposes that the veteran's onset
of "breaking out" on the face of "pimples", began in March
1946. Clinical evaluation of the skin revealed mild to
moderate acne scarring on the cheeks, nose, chin and chest.
There was no active lesions. The relevant diagnosis was
history of acne vulgaris with mild residual scarring. These
findings were again noted on VA dermatological examination
in April 1993.
As set out above, a preexisting injury or disease will be
considered to have been aggravated by active service, where
there is an increase in disability during such service,
unless there is a specific finding that the increase in
disability is due to the natural progress of the disease.
38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).
After a longitudinal review of the record, the Board finds
that the evidence in this case shows that the pertinent
symptomatology associated with the veteran's preexisting
acne vulgaris, present and treated during service,
represented an increase in underlying basic preservice
pathology. While there was documented mild, generalized
acne noted on entrance examination for service in September
1945, it cannot be disputed that the veteran experienced an
increase in symptomatology. Examinations during and after
service support this finding, as do the most recent VA
examination. Consequently, the Board concludes that the
record shows increase in severity of a preservice
disability, equivalent to aggravation, without clear and
unmistakable evidence to rebut the presumption of
aggravation. Thus, service connection is warranted.
II. Service connection for sebaceous cyst, multiple
papillomas and nevus
The threshold question is whether the veteran has presented
a well-grounded claim for service connection for sebaceous
cyst, multiple papillomas and nevus on a direct basis, i.e.,
one which is plausible. If he has not, the claim must fail
and there is no duty to assist in the development of the
claim 38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet.App. 78
(1990). A well-grounded claim requires more than an
allegation; the claimant must submit supporting evidence.
Although a claim need not be conclusive to be well-grounded,
it must be accompanied by evidence, not just mere
assertions. Furthermore, the evidence must justify a belief
by a fair and impartial individual that the claim is
plausible. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). As
will be explained below, we find that the veteran's claim
seeking service connection for sebaceous cyst, multiple
papillomas and nevus on a direct basis is not well-grounded.
Review of the veteran's service medical records, including
reports of physical examinations, reflects no reference to
complaints, diagnoses, findings or treatment related to
sebaceous cyst, multiple papillomas and nevus. A March 1946
separation examination and a November 1946 Certificate of
Disability were negative for pertinent symptomatology.
Postservice medical evidence indicates that the veteran was
initially examined by the VA in September 1948. On that
occasion, no symptoms referable to sebaceous cyst, multiple
papillomas and nevus were indicated.
Received in support of the veteran's claim for service
connection for skin disorders in March 1990, was
correspondence by Joseph F. Gorecki, M. D., wherein he
reported that the skin lesions the veteran had removed in
1981 and 1989 were not related to the skin symptomatology
treated in service. In this regard, he noted that the
veteran had undergone excision of six lesions, including
sebaceous cysts of the chest and back, multiple papillomas
of the upper and lower lids and nevus in the left suborbital
region.
The veteran testified at his October 1990 hearing on appeal
that he had received continuous outpatient treatment for
skin disorders since his discharge from service. He noted
that the treatment included the removal of skin lesions by
the burning off of the infected areas. He also stated that
he felt his several skin disorders were all related to
chronic acne vulgaris.
In January and April 1993, the veteran was afforded VA
dermatological examinations, pursuant to a June 1992 Board
remand request. Data recorded for clinical purposes
indicated that the veteran developed severe itching and
redness on areas exposed to wool in uniforms in 1945. It
was noted that he was granted permission to were cotton T-
shirts and that he had no recurrence of the symptoms except
when he inadvertently wears wool. It was further pointed
out that about 1977, the veteran began to develop multiple
brown, warty lesions on the upper back, shoulders and chest
accompanied by occasional moderate itching. Physical
examination revealed numerous seborrheic keratosis of varied
size and brown color, interspersed with a few capillary
hemangiomas on the back, shoulder and chest. The relevant
diagnoses were history of allergy to wool, numerous
seborrheic keratosis and capillary hemangiomas.
In this case, no objective clinical evidence has been
provided by the veteran to demonstrate that any of the
claimed skin disorders had its onset in service, as would be
required for a grant of service connection on a direct basis
under 38 U.S.C.A. § 1110. A claim is not considered well-
grounded if service records do not show the claimed
disability and there is no medical evidence to link a
current disability with events in service or with a service-
connected disability. Montgomery v. Brown, 4 Vet.App. 343
(1993). Moreover, the veteran's private physician has
reported in written correspondence that his sebaceous cysts,
multiple papillomas and nevus are not related to any skin
condition noted in service. Likewise, on the most recent VA
examination, the examining physician indicated that the
veteran's warty lesions first developed about 1977,
approximately 30 years after service separation.
As previously noted, a claimant must submit supporting
evidence that justifies a belief by a fair and impartial
individual that the claim is plausible. As such evidence
has not been presented here, the claim is not well-grounded
and the appeal must be dismissed.
ORDER
Service connection by aggravation is granted for acne
vulgaris.
The appeal of the issue of service connection for sebaceous
cyst, multiple papillomas and nevus on a direct basis is
dismissed.
REMAND
As previously indicated, this case was last before the Board
in June 1992 at which time it was remanded to the RO, in
part, for additional development regarding the veteran's
claim for an increased (compensable) evaluation for his
service-connected psychogenic gastrointestinal reaction.
Pursuant thereto, the Board notes that the RO granted
service connection for irritable bowel syndrome and combined
it with the psychogenic gastrointestinal reaction and then
increased the disability evaluation for the entire disorder
to 10 percent disabling. However, in the June 1992 remand
of this appeal, it was specifically pointed out that in
connection with the evaluation of the veteran's service-
connected psychogenic gastrointestinal reaction, Note (2)
following Diagnostic Code 9502 of the 38 C.F.R. § Part 4,
should be cited and considered by the VA examiners, as well
as the provisions of the particular Diagnostic Code
applicable to the veteran's disability. However, the case
has been returned to the Board by the RO without completion
of the requested development.
Accordingly, further appellate consideration of this issue
will be deferred and it is again REMANDED to the RO for the
following action:
1. The veteran should be requested to identify all sources
of recent treatment received for his service-connected
psychogenic gastrointestinal reaction and irritable bowel
syndrome. Copies of the medical records from all sources he
identifies (not already in the claims folder) should then be
requested by the RO. All records obtained should be added
to the claims folder.
2. Thereafter, the claims folder should be made available
to the psychiatrist and gastroenterologist who examined the
veteran in January and April 1993 or if they are not
available then some other psychiatrist and
gastroenterologist and they should be furnished a copy of
Diagnostic Code 9502 Note (2). It is specifically requested
that the examiners render an opinion regarding the
applicability of Note (2) of this Diagnostic Code in
reference to the veteran's
service-connected psychogenic gastrointestinal reaction and
irritable bowel syndrome. To this end, they should indicate
whether the veteran's service-connected irritable bowel
syndrome and psychogenic gastrointestinal reaction are
separate disorders or one disability entity and if one
disability entity then they should indicate which is the
major disability.
After the above development has been completed, the RO
should review the evidence and determine whether the veteran
is entitled to a separate rating for each disorder or one
rating and if it is determined that one rating is
appropriate then the RO should indicate which is the major
disability under Note (2) Code 9502. If the determination
remains adverse to the veteran in any way, he and his
representative should be furnished a supplemental statement
of the case which summarizes the pertinent evidence, fully
cites the applicable legal provisions and reflects detailed
reasons and bases for the decision reached.
Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order,
following appropriate appellate procedures.
The purpose of this REMAND is to further development the
record and accord due process of law. The Board does not
intimate any opinion, either factual or legal, as
to the ultimate disposition warranted in this case. No
action is required of the veteran until he is notified.
E. M. KRENZER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
Supp. 1995), a decision of the Board of Veterans' Appeals
granting less than the complete benefit, or benefits, sought
on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402 (1988). The date that appears on
the face of this decision constitutes the date of mailing
and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board
of Veterans' Appeals. Appellate rights do not attach to the
issue addressed in the remand portion of the Board's
decision, because a remand is in the nature of a preliminary
order and does not constitute a decision of the Board on the
merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).
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